New abuse evidence not enough to reopen rejected Indian residential school claims, says court

A British Columbia Supreme Court justice ruled Wednesday that new evidence of abuse was not enough to reopen rejected Indian residential school compensation claims.

Justice Brenda Brown said that reopening concluded compensation claims based on new evidence broke the rules created by the 2006, multi-billion dollar Indian residential school settlement agreement between Ottawa, the churches and survivors.

Brown said allowing cases to reopen on these grounds could also trigger a chain reaction without end, undermining one of the core aims of the agreement — finality.

“Claims that were dismissed could result in awards and claims where lower awards were made initially could result in higher awards,” wrote Brown, one of nine justices across the country responsible for supervising the settlement agreement. “Finality would be either impossible or very difficult to achieve.”

The settlement agreement created a unique tribunal model to determine compensation payouts: the Independent Assessment Process (IAP). The legal battle that led to the ruling played out over what is allowed within the IAP.

Ruling big win for Ottawa

Brown’s ruling is a significant win for Ottawa, which went to court in hopes of stopping the continued reopening of residential school cases by the IAP’s chief adjudicator as a result of new evidence surfacing.

Brown ruled that IAP decisions by adjudicators are, for the most part, final, and only the courts could reopen an IAP claim under the terms of the settlement agreement.

The legal arguments in the case hinged on whether the concept of “procedural fairness” — which plays a factor in judicial and quasi-judicial tribunals and includes issues like the right to an unbiased hearing — applied to IAP cases.

Brown sided with Ottawa ruling procedural fairness was a “non-term” within the settlement agreement and that applying it was a “contravention” that “alters the bargain that the parties made.”

Chief adjudicator Dan Shapiro’s office issued a statement saying he remained “committed to concluding the IAP … within the parameters set by the courts.”

The Assembly of First Nations, which opposed Ottawa in the case, did not immediately respond to a request for comment.

Justin Trudeau, then Liberal leader, hugs Elder Evelyn Commanda-Dewache, a residential school survivor, during the closing ceremony of the Indian Residential Schools Truth and Reconciliation Commission in Ottawa on June 3, 2015. (Sean Kilpatrick/Canadian Press)

Under the IAP, a residential school survivor files a claim before an adjudicator who determines the level of compensation— if any — that should be awarded. Ottawa provides the bulk of the documentation used to substantiate claims that it can then also challenge. Ottawa has been slow on providing this evidence throughout the life of IAP.

Appeal being considered

Brown’s ruling essentially means that a criminal has more legal rights before a prison disciplinary hearing than a residential school survivor seeking compensation for abuses, said David Schulze, a Montreal-based lawyer who argued against Ottawa in the case.

“It’s surprising.” Schulze said.

The ruling strikes a particular blow against cases from survivors who attended St. Anne’s, one of the most notorious institutions to emerge from the over century-long existence of Indian residential schools.

Lawyer David Schulze, representing independent counsel, argued against the government before the B.C. Supreme Court. (Dionne Schulze Attorneys)

During the first six years of the IAP, Ottawa denied the existence of documented sexual abuse and student-on-student abuse at St. Anne’s despite sitting on thousands of pages of police and court files itemizing such abuse.

Ottawa was forced to release the documents by an Ontario court in 2014.

Student-on-student abuse cases also featured prominently in this case. The nature of these cases — students have to prove staff knew or ought to have known about the abuse — means that survivors who file later in the process have more access to evidence than those who filed early.

“That is what the parties bargained for,” said Brown.

Schulze said an appeal is being contemplated.

About 98 per cent of all IAP claims have been resolved to date and 90 per cent of survivors who filed a claim have received compensation, according to the chief adjudicator’s office.